Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 4:55:06 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-14-00521-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 4:55:06 PM CHRISTOPHER PRINE CLERK Nos. 14-14-00521-CR & 14-14-00522-CR In the
Court of Appeals
For the Fourteenth District of Texas At Houston
Nos. 1377493 & 1377494 In the 209 th District Court Of Harris County, Texas GARY ISHMAEL BOLIN Appellant
v. THE STATE OF TEXAS Appellee
State’s Appellate Brief D EVON A NDERSON District Attorney Harris County, Texas A LLISON B UESE Assistant District Attorney Harris County, Texas C LINTON A. M ORGAN Assistant District Attorney Harris County, Texas State Bar No. 24071454 morgan_clinton@dao.hctx.net 1201 Franklin, Suite 600 Houston, Texas 77002 Tel: (713) 755-5826 FAX: (713) 755-5809 Counsel for the Appellee Oral Argument Not Requested *2 Statement Regarding Oral Argument The appellant requested oral argument, though he gave no particular reason why. The State believes the briefs in this case adequately apprise this
Court of the issues and the law, and any marginal benefit from oral argument
does not justify the considerable amount of time that preparation for oral
argument requires of the parties and the Court. Therefore, the State does not
request oral argument.
i *3 Identification of the Parties Counsel for the State:
Devon Anderson
District Attorney of Harris County
Allison Buese
— Assistant District Attorney at trial
Clinton A. Morgan
Assistant District Attorney on appeal Appellant:
Gary Ishmael Bolin
Counsel for the Appellant:
Scott Pope, Jules Johnson & Frances Bourliot — Counsel at trial
Casey Garrett
— Counsel on appeal
Trial Judge:
Michael McSpadden
Presiding judge
ii
Table of Contents
Page Statement Regarding Oral Argument .......................................................... i
Identification of the Parties ........................................................................ ii
Table of Contents .......................................................................................... iii
Index of Authorities ..................................................................................... iv
Statement of the Case ................................................................................... 1
Statement of Facts ......................................................................................... 1
A Note on the Appellant’s Right of Appeal ............................................... 3
Reply to the Appellant’s Sole Point of Error
A bench trial is a unitary proceeding, thus the trial court did not err in hearing punishment evidence prior to a finding of guilt. ........................................ 3 Conclusion ...................................................................................................... 5
Certificate of Compliance and Service ....................................................... 6
iii *5 Index of Authorities Cases
Barfield v. State
63 S.W.3d 446 (Tex. Crim. App. 2001) ............................................................................. 4 Lopez v. State
96 S.W.3d 406 (Tex. App.—
Austin 2002, pet. ref’d) .......................................................................................................... 4 Washington v. State
363 S.W.3d 589 (Tex. Crim. App. 2012) .......................................................................... 3 iv
To the Honorable Court of Appeals:
Statement of the Case The appellant was indicted on two charges of aggravated assault. (1 CR 15; 2 CR 15). [1] The appellant waived a jury trial and entered a plea of guilty
without an agreed recommendation from the State. (1 CR 128-132; 2 CR 76-
80; 2 RR 8-11). After hearing from witnesses and receiving a pre-sentence
investigation report, the trial court found the appellant guilty and sentenced
him to concurrent sentences of twenty and five years’ confinement. (1 CR 137;
2 CR 85). The appellant filed timely notices of appeal. (1 CR 140; 2 CR 88).
Prior to the finding of guilt and the assessment of punishment, the trial court
certified that the appellant had waived his right of appeal. (1 CR 134; 2 CR 82).
Statement of Facts Greg Ward was a business owner whose company leased a building from the appellant under a lease-purchase agreement. (2 CR 32). When Ward’s
company sent notice of its intent to purchase the property, the appellant
started eviction proceedings. (2 RR 32-33). Ward’s company responded by
*7 filing a lawsuit. (2 RR 32). For several months after that, things calmed down
between the parties. (2 RR 34).
On Valentine’s Day, 2013, the appellant came to the building to give roses to the female employees as he did every Valentine’s Day. (2 RR 14-15).
The appellant was friendly with the staff and even joked around with one of
them. (2 RR 15). The appellant asked the office manager, Jane Foley, where to
find a particular female employee, and Foley said that her office was upstairs.
(2 RR 15-16). The appellant walked off in that direction.
Ward was in his office, typing, with his attention focused on the keyboard. (2 RR 35). Two roses suddenly landed on his desk next to him; Ward
reached for them, thinking that it was an employee playing a practical joke on
him. (2 RR 35). As he reached for the roses, his chair swiveled around and
Ward saw the appellant. (2 RR 35). The appellant pulled out a gun and shot
Ward in the face. (2 RR 35).
Evan Gooch, an engineer with the company, was working in the office next door when he heard a loud noise from Ward’s office. (2 RR 24). Gooch
walked into Ward’s office and saw the appellant holding a smoking gun. (2 RR
24). The appellant pointed the gun at Gooch’s face. (2 RR 24). Foley came into
Ward’s office to investigate the noise and saw the appellant pointing a gun at
Gooch. (2 RR 16). She asked him what he was doing. (2 RR 16). The appellant
lowered the gun and calmly walked out of the building without saying
anything. (2 RR 16).
A Note on the Appellant’s Right of Appeal The trial court certified that the appellant had waived his right of appeal in this case. (1 CR 134; 2 CR 82). Both of those certifications were dated April
22, 2014, but the trial court did not make a finding of guilt and assess
punishment until June 27, 2014. (1 CR 137; 2 CR 85; see, generally 3 RR). As
the appellant points out, when a defendant enters an open plea and waives his
right of appeal prior to a finding of guilt and assessment of punishment, that
waiver is not valid. (Appellant’s Brief at 7-8 (citing Washington v. State , 363
S.W.3d 589, 590 (Tex. Crim. App. 2012)). Correctly understood, the appellant
has a right of appeal.
Reply to the Appellant’s Sole Point of Error A bench trial is a unitary proceeding, thus the trial court did not err in
hearing punishment evidence prior to a finding of guilt.
The appellant’s only complaint is that the trial court heard victim- impact testimony prior to a finding of guilt. (Appellant’s Brief at 7-9). The
appellant believes that this form was irregular. However, bench trials are
unitary proceedings without separate punishment hearings. Barfield v. State ,
63 S.W.3d 446, 449-50 (Tex. Crim. App. 2001). In a bench trial, all the evidence
is admitted in a single proceeding, followed by simultaneous findings
regarding guilt and punishment, exactly as occurred in this case. See ibid.
(“[T]he decision of the court in a unitary trial is not fixed until it renders
judgment on guilt and punishment after all the evidence and arguments have
been heard.”); Lopez v. State , 96 S.W.3d 406, 412 (Tex. App.—Austin 2002, pet.
ref’d) (Onion, J.) (in bench trial, guilt and punishment “cannot be separated”).
Thus the trial court did not err in its conduct of this trial and the appellant’s
point should be overruled.
Conclusion The State respectfully submits that all things are regular and the judgment of the trial court should be affirmed.
D EVON A NDERSON District Attorney Harris County, Texas /s/ C.A. Morgan C LINTON A. M ORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454 *11 Certificate of Compliance and Service I certify that, according to Microsoft Word’s word counting function, the portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a
word count contains 659 words.
I also certify that I have requested that efile.txcourts.gov electronically serve a copy of this brief to:
Casey Garrett
Casey.garrett@sbcglobal.net
/s/ C.A. Morgan C LINTON A. M ORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454 Date: January 14, 2015
[1] For ease of citation, the State will refer to the two clerk’s records in this case as though they were sequential volumes. The record for cause 1377493 (14-14-00521-CR) will be 1 CR, and the record for cause 1377494 (14-14-005220CR) will be 2 CR.